Citation Nr: 21061548 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-49 528 DATE: October 4, 2021 ORDER An earlier effective date than April 16, 2018 for the grant of service connection for posttraumatic stress disorder due to military sexual trauma with alcohol, cocaine, and opiate use (PTSD) is denied. FINDINGS OF FACT 1. The Veteran's formal claim for service connection for PTSD was received by the Department of Veteran Affairs (VA) on April 16, 2018. 2. All claims for service connection for PTSD received prior to April 16, 2018 resulted in rating decisions that became final when no new and material evidence was received within a year and no notice of disagreement was filed within a year. CONCLUSION OF LAW The criteria for an effective date prior to April 16, 2018 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from July 1973 to August 1974. The instant matter is on appeal from a July 2018 VA Regional Office (RO) rating decision that granted service connection for PTSD, established a 50 percent initial disability rating, and assigned an effective date of April 16, 2018. The Veteran appealed the rating percentage and the effective date. In a September 2018 rating decision, the RO granted a 100 percent initial rating, which fully satisfied the appeal for higher rating. The RO issued a Statement of the Case that the effective date remained April 16, 2018. The Veteran filed a VA Form 9 (substantive appeal). In April 2021, the Veteran testified before a Board of Veterans' Appeals (Board) hearing. The hearing transcript has been associated with the claims file. Earlier Effective Date An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2014); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). In this case, the evidence of record demonstrates that the Veteran filed a formal claim for service connection for PTSD on April 16, 2018 on a VA Form 21-526EZ. Barring any unusual circumstances, this date of claim will serve as the effective date for the claim. The Veteran makes a few arguments for why he thinks an earlier effective date should be granted. First, he states that he has taken the same medications and received the same psychiatric treatment at VA since the date that he believes should be the effective date (April 30, 2013). He stated that the only change that has happened over time has been his ability to discuss the military sexual trauma that happened to him. While it is understandable that the Veteran believes he should be compensated for the entire duration of the illness, the disability compensation process has requirements, to include filing an application and prosecuting an appeal. When entitlement to a disability arose is a different, and noncontrolling question, in this case because of the date the claim was filed on April 16, 2018. Even if entitlement arose earlier than April 16, 2018, the claim submitted following the last final decision was not received until April 16, 2018. It is the date of receipt of the claim or the date entitlement arose, whichever is the later, that determines the effective date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Second, the Veteran states that he did have earlier claims. The most recent final rating decision denying service connection for PTSD was in May 2015. No new and material evidence was received within a year of that rating decision and no notice of disagreement was filed. When asked to explain the reason for not appealing the earlier decision, the Veteran stated that he was given bad advice and that his psychiatric state was not amenable to an appeal. This unfortunately does not provide the Veteran with an avenue for escaping the legal requirements of effective dates, namely that they are restricted to the date of claim or the date on which entitlement arose, whichever is later, as the generalized assertions of bad advice and that his emotional state tipped in favor of not appealing does not assert or show that the mental state was the reason he was precluded from filing an appeal. Finally, the representative argued that VA treatment records should establish an effective date for a service connection claim. It appears likely that the representative is thinking of 38 C.F.R. § 3.157, which applies to informal increased rating claims, but does not apply to service connection claims. As such, this assertion is without merit. In summary, VA received the new claim for service connection for PTSD on April 16, 2018. All prior claims had become final, so cannot be used to establish an earlier effective date. For these reasons, the appeal for an effective date earlier than April 16, 2018 for PTSD must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.